Gay bashing is not a hate crime, at least according to the West Virginia Supreme Court.

In a 3-2 ruling issued on May 9, the court said that West Virginia's hate crime statute does not protect LGBT residents.

The ruling came in the case of former Marshall University football player Steward Butler, who was charged with assaulting two Gay men, Zackary Johnson and Casey Williams. According to the complaint, Butler was driving his car in April 2015, when he noticed Johnson and Williams on the sidewalk. He stopped his car, got out, shouted homophobic slurs at the men, and punched them.

Butler was charged with battery. Cabell County prosecutors later added a charge of violating his victims' civil rights.

Butler's lawyers pointed out that West Virginia law only prohibits civil rights violations based on race, color, religion, ancestry, national origin, political affiliation, or sex. Consequently, the trial court dismissed the civil rights charge against Butler.

In her appeal to the state Supreme Court, Cabell County Assistant Prosecutor Lauren Plymale said the trial judge was wrong when he dismissed the charges because the word 'sex' also covers sexual orientation.

The majority of Supreme Court justices disagreed, however. In an opinion written by Chief Justice Allen Loughry, the court said the word 'sex' is undefined in the code and therefore must be interpreted under its common and ordinary meaning.

'We find the word to be clear and unambiguous and to have a very different meaning and import than the term 'sexual orientation,' Loughry wrote.

Loughry added that that since the hate crimes statute was passed in 1987, lawmakers had tried to add the words 'sexual orientation' to the hate crimes statute on at least 26 occasions but failed to get a majority every time.

'It is certainly not absurd for this Court to recognize not only the Legislature's right to define crimes and their punishment but also the Legislature's indisputable intent not to expand West Virginia Code § 61-6-21(b) to include sexual orientation,' Loughry wrote.

'It is imperative to remember that '[i]t is not for this Court arbitrarily to read into a statute that which it does not say.' Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obliged not to add to statutes something the Legislature purposely omitted.'

The case now goes back to the Cabell County Circuit Court for trial on the battery charge.

West Virginia Attorney General Patrick Morrisey, whose office argued in favor of the circuit judge's ruling, said that only the legislature has legal authority to expand the scope of the state's civil rights law.

'The state Supreme Court of Appeals interpreted the law as written, respecting the Legislature's authority to determine criminal law,' Morrisey said in a statement.

'The facts of this case are deeply disturbing and heinous, and I remain steadfast in describing the alleged behavior as despicable, but such conduct does not give the judicial system a license to rewrite state law. That authority lies with the state legislature, and this decision preserves that balance.'

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